THE SUPREME COURT OF THE
FEDERATES STATES OF MICRONESIA
TRIAL DIVISION
Cite as International Bridge Corp. v. Yap,
9 FSM Intrm. 362 (Yap 2000)

[9 FSM Intrm. 362]

INTERNATIONAL BRIDGE CORPORATION,
Plaintiff,

vs.

YAP STATE and BLACK MICRO
CORPORATION,
Defendants.

CIVIL ACTION NO. 2000-3001

ORDER AND MEMORANDUM; SCHEDULING ORDER

Martin Yinug
Associate Justice

Decided:  March 28, 2000

APPEARANCES:
For the Plaintiff:             Ron Moroni, Esq.
                                        P.O. Box 1618
                                        Kolonia, Pohnpei FM 96941

For the Defendant:        Jennifer Link, Esq.
          (Yap)                     Yap State Attorney General's Office
                                        P.O. Box 435
                                        Colonia, Yap FM 96943

For the Defendant:        Daniel J. Berman, Esq.
(Black Micro. Corp.)     P.O. Box 1491
                                        Kolonia, Pohnpei FM 96941

*    *    *    *

[9 FSM Intrm. 363]

HEADNOTES
Public Contracts
     When the state's letter says that the bid was incomplete and that the contract was awarded to another bidder, it is a fair inference that the bid was rejected.  International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 364 (Yap 2000).

Administrative Law ) Judicial Review
     A person, including a corporation, who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case is entitled to judicial review.  International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 365 (Yap 2000).

Administrative Law ) Judicial Review; Public Contracts
     Rejection of a contractor's bid on the basis it was incomplete is a final administrative determination which confers on the bidder the right to judicial review.  International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 365 (Yap 2000).

Administrative Law ) Judicial Review; Civil Procedure ) Injunctions
     Under Yap law, proceedings for judicial review of an agency decision may be instituted by filing a petition in a court of competent jurisdiction within thirty days after the issuance of the decision to be reviewed.  The agency may grant, or the court may order, a stay of the administrative agency's final decision on appropriate terms.  International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 365 (Yap 2000).

Administrative Law ) Judicial Review
     Judicial review of an agency decision is confined to the record, although the court may receive briefs, hear oral argument, and receive supplemental evidence.  The court cannot substitute its judgment for that of the agency on factual questions and must give appropriate weight to the agency's experience, technical competence, and specialized knowledge.  International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 365 (Yap 2000).

Administrative Law ) Judicial Review
     When there was no formal hearing requiring transcription, the court may shorten the time before oral argument on judicial review of an agency decision.  International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 366 (Yap 2000).
 
Administrative Law ) Judicial Review; Civil Procedure ) Injunctions
     When the court has scheduled oral argument for judicial review of an agency decision, when the state is facing time constraints, and when the aggrieved party, although it has presented a fair question for determination on the record, has not demonstrated to the court's satisfaction that it is so likely to prevail, the court will exercise its discretion not to enter a stay or a TRO.  International Bridge Corp. v. Yap, 9 FSM Intrm. 362, 366 (Yap 2000).

*    *    *    *

COURT'S OPINION
MARTIN G. YINUG, Associate Justice: 
     For the reasons below, the court denies the request for temporary restraining order of plaintiff International Bridge Company ("IBC").  This matter is set for oral argument pursuant to 10 Y.S.C. 164(a) on Monday, April 3, 2000, at 10:00 a.m. The motion to dismiss and strike the complaint of

[9 FSM Intrm. 364]

defendant Black Micro Corporation ("Black") is denied, pending receipt by the court of a proof of proper service of the summons and complaint upon Black.  The scheduling matters are addressed further below.

     The court has received and considered the following:

     1)  Complaint for Injunctive/and/or [sic] Declaratory Relief; Motion for Temporary Restraining Order/Motion for Preliminary Injunction/Request for Leave to File by Fax; and Affidavit in Support of Motion for Temporary Restraining Order. IBC submitted these by fax March 21, 2000.

     2)  Objection and Opposition to Motion for Temporary Restraining Order filed by Yap state ("Yap") on March 21, 2000, and the Affidavit of James Sarmog, filed by Yap on March 22, 2000.

     3)  Reply to Opposition to Motion for Temporary Restraining Order submitted by fax by IBC on March 22, 2000; and Supplemental Memorandum/Motion to Filing [sic] by Fax submitted by IBC on March 24, 2000.

     4)  Opposition to Plaintiff's Motion for Temporary Restraining Order; Motion to Dismiss and Strike submitted by fax by Black on March 27, 2000.

     5)  Response to Plaintiff's Supplemental Memoranda [sic] filed by Yap on March 27, 2000.

     The court has also received a copy of a letter dated March 24, 2000, from IBC's counsel to the Department of Public Works & Transportation.  The thrust of that letter is that IBC protests the award of the contract for the Yap Sports Complex, and that IBC "wishes to protest any determination made that IBC was not the lowest responsible bidder, or was otherwise was [sic] not qualified to perform the work under the contract."

     IBC seeks a temporary restraining order and preliminary injunction pursuant to Rule 65(b) of the FSM Rules of Civil Procedure.  IBC seeks to enjoin Yap from awarding the contract for the Yap Sports Complex to any firm but IBC, and further asks that Yap and Black, which was awarded the contract, be temporarily restrained from any further work on the project pending a hearing to give IBC an opportunity to show that it was the lowest responsible bidder for the project and should have been awarded the contract.

     Yap, acting by its agency the Yap State Department of Public Works and Transportation ("Public Works"), awarded the contract for the complex pursuant to its authority under 9 Y.S.C. 521 et seq.  Yap makes the express representation that "Yap State did not enter into a contract with IBC on this project because IBC's bid papers were incomplete in five specified, required areas."  Response to Pl.'s Supplemental Mem. at 1.  Yap concedes that IBC was a qualified bidder within the meaning of 9 Y.S.C. 524 , and further states that "it is not the State's intention to foreclose IBC from . . . submitting bids to the State on future projects, or in any away to pass comment on the company's experience or capabilities to perform its work."Id.  IBC's qualifications are therefore not at issue, and Yap's contention that it properly rejected IBC's bid is based on its contention that IBC's bid presentation was incomplete.  While Yap never notified IBC in so many words that its bid had been rejected, it did transmit a letter dated March 15, 2000, in which it stated that the contract had been awarded to Black, and that IBC's bid was incomplete.  The fair inference from the letter is that IBC's bid was rejected.

     IBC cites 10 Y.S.C. 133(a) for the proposition that it is entitled to a hearing before the agency, but that it is not likely to get one.  Section 133(a) provides that "[i]n a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice."  In the absence of such a hearing, IBC

[9 FSM Intrm. 365]

contends that it is then entitled to judicial review of the decision under 10 Y.S.C. 161 et seq.  However, the section immediately preceding 133, or 10 Y.S.C. 132, provides as follows:

        132.  Hearing.
Prior to the adoption, amendment or repeal of any regulation, the agency shall afford all interested persons reasonable opportunity to submit data, views, and arguments, orally or in writing.  In case of substantive regulations, opportunity for oral hearings shall be granted if requested by twenty-five persons, by a governmental subdivision or agency or by an association having not less than twenty-five members.  The agency shall consider fully all written and oral submissions respecting the proposed regulations.

Hence, a hearing under 10 Y.S.C. 133(a) is in the specific context of the proposed "adoption, amendment or repeal of any regulation."

     In contrast, the language of 10 Y.S.C. 161(a) is of general application, and provides in pertinent part that "[a] person who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case shall be entitled to judicial review under this chapter."  "Person," under 102(f), includes corporations ) IBC is a corporation ) and Public Works is an agency of Yap.  Section 524 of Title 9 provides for a procedure for an intra-agency procedure for challenging a finding that a bidder lacks the necessary qualifications, and IBC appears to have initiated that procedure by its counsel's letter of March 24, 2000, to Public Works.  However, since Yap has conceded that IBC was, and remains qualified, that point is no longer at issue.  The present issue is the rejection of IBC's bid based on Yap's contention that the bid was incomplete.  Under the court's reading of relevant portions of titles 9 and 10 of the Yap State Code, Yap's rejection of IBC's bid was a final administrative determination which confers on IBC the right to judicial review specified in 10 Y.S.C. 161 et seq.

     Section 162 of Title 10 provides that "[p]roceedings for review may be instituted by filing a petition in a court of competent jurisdiction within thirty days after the issuance of the decision to be reviewed."  In lieu of a petition, IBC has filed a complaint and application for TRO and preliminary injunction.  Section 162(b) of Title 10 encompasses the relief that IBC seeks in its application for TRO and preliminary injunction:  "[t]he agency may grant, or the court may order, a stay [of the administrative agency's final decision] on appropriate terms."

     Section 164 of Title 10 outlines the procedure that the court follows in reviewing the agency decision.  It reads in its entirety as follows:

164.  Review.
(a)     The review shall be confined to the record.  Upon request by any party, the court shall receive briefs and hear oral argument.  On motion of any party, the court may, in its discretion, receive any evidence necessary to supplement the record.

(b)     The court may not substitute its judgment for that of the agency as to the weight of the evidence of questions of facts.  In reviewing the agency's interpretation of evidence, its factual inferences, and its conclusions of law, the court shall give appropriate weight to the agency's experience, technical competence, and specialized knowledge.

The court will deem the thorough submissions received thus far as the briefs of the parties.  This matter is set for oral argument on Monday, April 3, 2000, at 10:00 a.m.

[9 FSM Intrm. 366]

     Section 163 of Title 10 provides that "[w]ithin thirty days after service of the petition, or within further time allowed by the court, the agency shall transmit to the court the original or a certified copy of the record of the proceeding under review." As there appears to have been no formal hearing requiring transcription, the court shortens this time frame.  Moreover, it appears that a substantial portion of the record below is already before the court as part of the parties' submissions.  The parties are directed to confer, and stipulate to the record below.  If they are unable to stipulate as to specific items, the court will address these questions prior to commencement of the oral argument on Monday, April 3, 2000.  Further, any party who wishes to offer evidence at the time set for oral argument pursuant to 164(a) will lodge the request with the court by noon on Thursday, March 30, 2000, and the court will rule on the request by the close of business on Thursday.

     IBC's request for a TRO pending the oral argument under 10 Y.S.C. 164(a) is denied.  Yap is facing time constraints in its construction of the sports facility. Further, IBC has presented a fair question for determination upon the record ) whether its bid was wrongfully rejected.  However, IBC has not demonstrated to the court's satisfaction that it is so likely to prevail that the court should exercise its discretion to a enter a TRO now.  Ponape Enterprises Co. v. Bergen, 6 FSM Intrm. 286, 288 (Pon. 1993).

     Black raises service issues, although it has responded in substance to the application for TRO and preliminary injunction.  No later than the time set for oral argument, IBC will file a proof of service with the court showing proper service of the summons and complaint on Black.

     Finally, the clerk is directed to accept for filing by fax all of the submissions received thus far from off-island parties.
                                                                                                                                                                                                                                                                                                           
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